Citation NR: 9707742
Decision Date: 03/10/97 Archive Date: 03/25/97
DOCKET NO. 92-08 813 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for a bilateral eye
disability (other than hypertension-related retinopathy).
2. Entitlement to an increased rating for deviated nasal
septum, currently evaluated as 10 percent disabling.
3. Entitlement to a compensable rating for a left elbow
spur.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from July 1969 to May 1987.
The Board of Veterans' Appeals (Board) last remanded the case
to the Regional Office (RO) in October 1995. Subsequent to
the Board’s remand, the RO, in a rating decision of June
1996, granted a 10 percent evaluation for the veteran’s
deviated nasal septum. The veteran’s accredited
representative continues to voice his disagreement with that
decision.
For reasons which will become apparent, the issues of service
connection for an eye disorder, and an increased rating for
service-connected deviated nasal septum will be the subjects
of the REMAND portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that an increased rating is warranted
for his service-connected left elbow disability, in that the
various manifestations of that disability are more severe
than currently evaluated, and productive of a greater degree
of impairment than is reflected by the noncompensable
evaluation presently assigned. Consideration of the benefit
of the doubt doctrine is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports a
compensable (10%) evaluation for the veteran’s service-
connected left elbow spur.
FINDINGS OF FACT
The veteran’s service-connected left elbow spur is presently
characterized by slight tenderness and a mild gritty
sensation over the tip of the olecranon process, and is
productive of a slight functional loss due to pain.
CONCLUSION OF LAW
A compensable (10%) evaluation for the veteran’s service-
connected left elbow spur is warranted. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 3.321, Part 4, 4.7, 4.31,
4.40, 4.45, 4.59, Diagnostic Codes 5003, 5205, 5207, 5211,
5213 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Background.
The appellant injured his left elbow in service in April
1980, according to a service medical record of that date. At
the time of a June 1991 Department of Veterans Affairs (VA)
orthopedic examination, he reported no recent treatment for
it. Clinically, he had a full range of motion of the left
elbow, with some tenderness over the olecranon, but no
enlargement. X-rays revealed curvilinear calcification in
the insertion of the triceps tendon on the olecranon process.
The radiohumeral and elbow joints were intact. The diagnosis
was olecranon spurs with history of olecranon bursitis.
On VA orthopedic examination in December 1995, the appellant
reported that he had had injections and fluid removals for
elbow swelling in the past, and that the left elbow last
swelled up about 2 months ago. Additionally, he complained
of some aching discomfort in the olecranon area with weather
changes. He reported a gritty sensation in the elbow, and
that his spur would give him trouble.
Clinically, there was a full range of motion of the left
elbow. The olecranon process was moderately prominent with
small spur formation. There was no evidence of an enlarged
or fluid-filled bursa, or of inflammation or infection.
There was a slight tenderness and a mild gritty sensation
over the tip of the olecranon process. This was said to be
typical of chronic mild olecranon bursitis. He had good
muscle strength in his upper extremities. The diagnosis was
olecranon spur with mild symptomatology with intermittent
bursitis over the spurs. It was stated that this was an
annoying type of problem, and not a serious type of problem
of any kind. X-rays revealed a small ossific density in the
medial aspect of the radiohumeral joint that was thought to
be artifactual, as well as spurring at the insertion of the
triceps.
II. Analysis.
Disability ratings are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic
codes identify the various disabilities. 38 C.F.R. Part 4.
When there is X-ray evidence of arthritis in a joint, the
joint is to be rated under the limitation of motion code(s)
for the particular joint. Where there is an otherwise
noncompensable degree of limitation of motion of a major
joint under the appropriate Diagnostic Code, but there is
also X-ray evidence of arthritis of such joint, a 10 percent
rating is to be assigned for it. 38 C.F.R. Part 4,
Diagnostic Code 5003.
An elbow injury may be rated based upon limitation of motion
of the forearm. When forearm flexion is limited to 110
degrees, a noncompensable rating is assigned. When it is
limited to 100 degrees, a 10 percent rating is assigned.
38 C.F.R. Part 4, Diagnostic Code 5206. When forearm
extension is limited to 45 degrees, a 10 percent rating is
assigned. 38 C.F.R. Part 4, Diagnostic Code 5207.
Limitation of supination to 30 degrees warrants a 10 percent
rating. Limitation of pronation so that motion is lost
beyond the last quarter of the arc warrants a 20 percent
rating. 38 C.F.R. Part 4, Diagnostic Code 5213. Impairment
of the ulna with malunion and malalignment warrants a 10
percent rating. 38 C.F.R. Part 4, Diagnostic Code 5211.
The Board notes that disability of the musculoskeletal system
is the inability to perform normal working movement with
normal excursion, strength, speed, coordination, and
endurance, and that weakness is as important as limitation of
motion, and that a part which becomes disabled on use must be
regarded as seriously disabled. Moreover, it is the intent
of the Schedule for Rating Disabilities (Part 4) to recognize
painful motion with joint or periarticular pathology as
productive of disability. 38 C.F.R. § 4.59 (1996). This is
to say that, even absent a definable limitation of motion,
where there is functional loss due to pain, supported by
adequate pathology, a compensable evaluation may be
warranted. 38 C.F.R. § 4.40 (1996).
The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate
inquiry into whether there is crepitation, limitation of
motion, weakness, excess fatigability, incoordination, and
impaired ability to execute skilled movements smoothly, and
pain on movement, swelling, deformity, or atrophy of disuse.
It is the intention of the rating schedule to recognize
actually painful, unstable, or malaligned joints, due to
healed injury, as at least minimally compensable.
In every instance where the minimum schedular evaluation
requires residuals and the schedule does not provide a no
percent evaluation, a no percent evaluation will be assigned
when the required residuals are not shown. 38 C.F.R. § 4.31.
When there is a relative equipoise of positive and negative
evidence as to an issue, the benefit of the doubt should be
resolved in favor of the claimant. 38 U.S.C.A. § 5107.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In this case, on VA orthopedic examination in June 1991,
there was some tenderness in the olecranon process of the
veteran’s left elbow. On more recent VA orthopedic
examination in December 1995, the veteran complained of an
“aching discomfort” in the area of the left olecranon process
on weather changes. Physical examination revealed a left
olecranon process which was “moderately prominent,” with spur
formation. Additionally noted was the presence of tenderness
in conjunction with a mild “gritty” sensation over the tip of
the olecranon process.
The Board concedes that, based upon recent examination
findings, the veteran currently experiences a full range of
motion of his service-connected left elbow. There is no
evidence of inflammation or infection, or of any fluid in or
enlargement of the bursa. Nevertheless, given the veteran’s
history, and consistent complaints of tenderness in the left
elbow, the Board is of the opinion that the veteran currently
suffers a “functional loss due to pain” sufficient to warrant
the assignment of a 10 percent evaluation for his service-
connected left elbow spur. 38 C.F.R. § 4.40 (1996). An
evaluation in excess of that is not warranted, given the lack
of any limitation of motion, impairment of the ulna, or other
findings consistent with a higher level of disability.
ORDER
A compensable (10%) evaluation for the veteran’s service-
connected left elbow spur is granted, subject to those
regulations governing the award of monetary benefits.
REMAND
As noted above, the veteran’s service-connected deviated
nasal septum disability was increased from noncompensable to
compensable (10 percent) following the Board's last remand.
The rating code under which it was evaluated, 38 C.F.R. Part
4, Diagnostic Code 6502, provides no more than a 10 percent
rating. Following the granting of that rating, the RO
attempted to terminate the veteran’s appeal on the basis that
such grant represented a “complete resolution” of the
veteran’s appeal as to that issue. The representative
pointed out, however, that, as per the decision of the United
States Court of Veterans Appeals (Court) in AB v. Brown, 6
Vet.App. 35 (1993), the veteran’s appeal was not terminated,
and that the question of entitlement to a rating in excess of
10 percent remained. In light of procedural requirements,
suggested by the representative’s citation to Douglas v.
Derwinski, 2 Vet.App. 103 (1992), further development will be
undertaken prior to a final decision on the issue of an
increased rating for the veteran’s deviated nasal septum.
In reference to the appellant’s bilateral eye disability
claim, the Board notes that several eye abnormalities were
treated or suspected to be present in service, among them
conjunctivitis, 2 small lenticular opacities in the right
eye, and central “SPK”, right eye greater than left eye.
Chronic blepharoconjunctivitis and blepharochalasis were
diagnosed on VA examination in June 1991, as was
“accommodative spasm causing blurred vision” bilaterally. A
private optometrist reported left eye temporal pallor in
August and October 1991. On VA examination in January 1996,
injected conjunctiva were noted and blepharochalasis of both
eyes was diagnosed, and macular dystrophy and neurological
pathology were to be ruled out or diagnosed by additional
testing. Further investigation was, however, thwarted by the
appellant’s failure to report for that testing, specifically,
electroretinography. The unfulfilled purpose of the Board’s
last remand was to obtain diagnoses for all eye disabilities
present, as well as to obtain opinions as to whether or not
there was a nexus between those disabilities and the
veteran's period of service or service-connected
disabilities, one of which is hypertension with retinopathy.
Accordingly, the case is REMANDED to the RO for the following
action:
1. A VA ophthalmology examination
should be conducted. The
ophthalmologist should review the
veteran's claims folder and a copy of
this remand, which should be made
available to him or her for such review,
perform any necessary tests, such as
electroretinography, and, (whether or
not the appellant appears for the
examination), render an opinion (with
supporting rationale) as to any eye
disability present, regarding whether or
not and why there is or is not a nexus
between such disability and the
veteran's service or any
service-connected disability.
2. After ensuring that the above has
been accomplished, the RO should again
consider the appellant’s claims for
service connection for eye disability
and for an increased rating for his
deviated nasal septum, the latter in
light of the Court’s holdings in AB v.
Brown and Douglas v. Derwinski.
Consideration should specifically be
given to evaluation of the veteran’s
service-connected deviated nasal septum
under any appropriate analogous code, or
on an extraschedular basis. Thereafter,
to the extent that its action remains
adverse to him, the RO should provide
the veteran with a supplemental
statement of the case meeting all the
requirements of 38
U.S.C.A. § 7105(d)(1)(A), (B), and (C)
(West 1991).
The case should then be returned to this Board in accordance
with the usual appellate procedures, if necessary. No action
is required of the appellant until he is further informed.
The purpose of this REMAND is to assist the appellant and to
provide him with due process of law. No inference is to be
drawn regarding the final disposition of the veteran’s
claims.
S. F. SYLVESTER
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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